Short Answer

In North Carolina, you clear title to a omitted real estate by probating the decedent’s will with the Clerk of Superior Court in the county where the land sits, then recording the probated will (and certificate of probate) in that county. If the will was first probated in another state, you can file a certified/exemplified copy here. If no personal representative needs to administer assets, you can use “probate without qualification” to pass title for recording. Title insurers typically require these steps before issuing insurance.

Understanding the Problem

You are asking whether, in North Carolina, you can clear title and get title insurance for a small lot that was never moved into a parent’s revocable trust. You, as the executor named in the will, want a process to pass marketable title to that North Carolina lot so a title insurer will insure a sale.

Apply the Law

Under North Carolina law, a decedent’s real property passes under the will to the devisees, but the will must be admitted to probate to effectively pass title and be recorded where the land lies. If the decedent died domiciled outside North Carolina and the will was probated there, a certified (or exemplified) copy of that will and the foreign probate can be probated here to pass North Carolina real property. When only title needs to be established for land and there is no personal property to administer, the will can be probated “without qualification” (no personal representative appointed) as a muniment of title. The Clerk of Superior Court in the North Carolina county where the land is located is the forum. Time triggers to know: present the will promptly (others may apply after 60 days if the named executor does not), sales by heirs/devisees within two years of death are restricted as to creditors unless a personal representative publishes notice and joins the deed, and any caveat to the will generally must be filed within three years after probate.

Key Requirements

• Probate the will in North Carolina: File the original will, or if first probated elsewhere, file a certified/exemplified copy with the Clerk in the county where the land is located.
• Choose the right track: If you only need to pass title, use probate without qualification (no letters). If creditor issues or a sale within two years of death are involved, consider qualifying a personal representative.
• Record for land title: Record the certified copy of the probated will and the certificate of probate in the Register of Deeds of the county where the lot sits; record in each county where the decedent owned land.
• Ancillary administration, if needed: For nonresident decedents, you may either probate a certified copy of the foreign will here or seek ancillary letters if administration is required.
• Creditor window awareness: Sales by heirs/devisees within two years of death can be void as to creditors unless notice is published and the personal representative joins the deed.

What the Statutes Say

• North Carolina Gen. Stat. § 31-39 (Probate necessary to pass title; recording) – A will must be probated to pass real property and recorded in each county with land.
• North Carolina Gen. Stat. § 28A-2A-17 (Probate of foreign will in NC) – Certified/exemplified copies of a will probated elsewhere may be probated here to pass NC land.
• North Carolina Gen. Stat. § 28A-17-12 (Sales by heirs/devisees) – Sets rules for sales within two years of death as against creditors and personal representatives.
• North Carolina Gen. Stat. § 28A-2A-13 (Wills; custody and recording) – Addresses custody of original wills and filing certified copies where real property lies.

Analysis

Apply the Rule to the Facts: Because the lot was left out of the trust, you clear title through the will, not the trust. To satisfy the title insurer, have the will admitted to probate in the North Carolina county where the lot is located. If the will was probated in another state, file certified/exemplified copies here for probate. Then record the probated will and certificate of probate in the land records. If no creditor or administration issues remain, probate without qualification is often enough to establish marketable title for insurance.

Process & Timing

1. Who files: The named executor or any interested devisee. Where: Office of the Clerk of Superior Court in the North Carolina county where the lot is located. What: If original probate in NC, file the will using AOC-E-201 (to qualify) or AOC-E-199 (probate without qualification). If the will was probated elsewhere, file certified/exemplified copies with AOC-E-309 (addendum) and either AOC-E-201 or AOC-E-199. AOC-E-304 (Certificate of Probate) will issue upon admission. When: File as soon as practicable; others may seek probate if the named executor does not act after 60 days.
2. After admission, record a certified copy of the probated will and the certificate of probate with the Register of Deeds where the lot is located. If you qualified as personal representative and a sale is planned within two years of death, publish Notice to Creditors and plan for the personal representative to join in the deed. County processing times vary; many clerks and recording offices act within days.
3. Provide the title insurer with the recorded will/certificate of probate, any letters (if issued), proof of published creditor notice (if applicable), and a certified death certificate. Expect the insurer to require the deed from the proper grantor (personal representative if within two years with notice; otherwise devisees) to the buyer.

Exceptions & Pitfalls

• Nonresident decedent: If the parent died domiciled outside North Carolina, either probate the will here as original or probate a certified/exemplified copy of the foreign will and its probate. If the clerk is not satisfied about valid execution, the clerk can take additional proof.
• Trust vs. will: A pour-over trust does not move omitted real estate; you still must probate and record the will to pass title.
• Recording in every county: If the decedent owned land in more than one North Carolina county, record certified copies of the probated will in each county for full effect against purchasers and lien creditors.
• Death certificate: Some clerks do not require it for probate, but title insurers and recording offices often do. Obtain a certified death certificate early.
• Caveat risk: A will can be challenged within three years after probate. Insurers may request indemnities or additional documentation in unusual cases.

Talk to a Probate Attorney

If you’re dealing with an omitted North Carolina property and a title insurer is demanding probate before a sale, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.